Supreme Court faces pressure to reconsider Citizens United

Lifted from an e-mail by Beverly Mann in response to an inquiry of mine on a Washington Post article:

Hi Dan. The key paragraphs in a Washington Post article earlier this week, called Supreme Court faces pressure to reconsider Citizens United ruling say:

The Supreme Court has already blocked the Montana decision, and the justices may simply set their counterparts in Helena straight by summarily reversing the finding. But pressure is being applied — by members of Congress and nearly half the states, not to mention Justices Ruth Bader Ginsburg and Stephen G. Breyer — to at least let Montana make its argument.

The Montana Supreme Court acknowledged a conflict when it voted 5 to 2 to uphold the state law, created by voters in 1912 to combat the power of the so-called Copper Kings who controlled state politics. It said the state’s characteristics, including a dependence on agriculture and mining and low campaign costs, made it “especially vulnerable” to corporate control.

Those urging the court to grant a full hearing of the Montana case take aim at the most important finding of Citizens United. That was the declaration in Justice Anthony M. Kennedy’s majority opinion that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

“That cannot be so,” the new bipartisan team of Sens. John McCain (R-Ariz.) and Sheldon Whitehouse (D-R.I.) told the court. “Whether independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system; it is a factual question, not a legal syllogism.”

The court under Chief Justice John G. Roberts Jr. has incrementally undermined McCain’s landmark campaign finance act by saying it doesn’t meet First Amendment requirements. McCain has in turn been dismissive of a court — without a single member who has ever run for public office — that he says is hopelessly naive about how campaign finance affects the political process.

The most stunning part of the Citizens United opinion was that declaration of fact was made out-of-the-blue and that most people recognize is plainly false. I wrote about this a couple of times on AB, including last January, shortly after the Montana Supreme Court issued its opinion.

I think that, although the rightwing majority would love to just summarily reverse the Montana Supreme Court on the basis of that declaration of purported fact in Citizens United, they’re under enough pressure now to not do that; the dissents from any such opinion would be devastatingly scathing and would get a lot of attention. I think they’ll agree to hear the case, and will schedule the oral argument for after the election. I think that, when they do decide the case, the wingnut majority probably will say that, whether or not “independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system,” the First Amendment interest in “free speech” outweighs it.

But, who knows? Another possibility is that they’ll say that their opinion in Citizens United stated that it was based on the presumption of transparency about who is actually funding these Super PACs, and on the basis that, supposedly, these Super PACs do operate independently of the candidates’ campaigns, and that unless both of these presumptions actually are true, laws like Montana’s are constitutional.

And Beverly added later:

In my opinion, the only newsworthy part is the amicus brief from McCain and Whitehouse, because of MCain’s participation and because these two senators are saying that as a matter of fact the Citizens United opinion’s declaration of fact is erroneous, and that they, not the justices, have the actual facts. That’s the argument made by Montana’s attorney general, but having two senators say outright that in their experience, the Supreme Court’s statement of fact is flatly wrong is a big deal. But I don’t have any more insight into what will happen than what I wrote in the email and what’s in the Washington Post article.